G. Ramanujam, J.
1. The petitioner claims to be a cultivating tenant in respect of 51 cents in R. S. No. 9/2 belonging to one Arunachala Iyer of Nemmeli village in Sirkali taluk. An extent of 3.64 acres of wet lands belonging to the said Arunachala Iyer was declared as surplus land by the Authorised Officer, the first respondent herein, under the Madras Land Reforms (Fixation of Ceiling on Land) Act, 1961, hereinafter referred to as the Act. R.S. No. 9/2 formed part of the land declared as surplus. In the draft and final notification published under Sections 12 and 18 respectively the name of the petitioner had been shown as occupier. After the final notification under Section 18, excess lands were taken over by Government. Thereafter a notice in form B inviting applications in Form C for assignment of the lands was duly published. Two ' applications had been received in answer to the said notice for the assignment of the above lands. The said applications were duly notified in Form D and objections were called for. The Special Deputy Tahsildar Mayuram was asked to conduct an enquiry on the C form applications. After pursuing the records of the enquiry and the recommendations of the said Special Deputy Tahsildar, an assignment was ordered on 28th November, 1973 in favour of the fourth respondent in respect of an extent of 3 acres 64 cents and in favour of the Chandrasekaran in relation to 20 cents.
2. The petitioner who claims to have been dispossessed as a result of the final notification under Section 18 filed an application for assignment on 21st January, 1974 that is, long after the assignment had been made. This application was returned by the Authorised Officer on 31st January, 1974 stating that an order of assignment had been passed on 28th November, 1973 and that the petitioner may prefer an appeal before the District Revenue Officer if she is so advised. The petitioner thereupon filed an appeal before the District Revenue Officer against the order of assignment passed by the Authorised Officer on 28th November, 1973 assigning parts of the lands in favour of the fourth respondent. It was contended by the petitioner before the District Revenue Officer, the second respondent herein, that she being a tenant referred to in the draft and final notification under Sections 12 and 18 respectively is entitled to priority over all other claimants for assignment that she has always been willing and ready to make the application for assignment, that the fourth respondent has no right to get the assignment of the lands in preference to the petitioner, and that In any event, the dispossession of the petitioner from the lands in her occupation will cause irreparable loss and hardship and that therefore the order of assignment passed on 28th November, 1973 should be set aside. On behalf of the fourth respondent it was contended before the second respondent that the petitioner not having applied for assignment of the lands in question, nor having filed any objections to the proposed assignment as required under the rules she is not entitled to challenge the assignment.
3. The second respondent found that the petitioner was a tenant in occupation of a portion of the excess land and that her name finds a place in the draft and final notifications under Sections 12 and 18 respectively. He also found that the publication of D form notice inviting applications had been duly made, that notice in Form D calling for objections was also duly notified, and that the petitioner did not either file an application for assignment before the notified date before 28th November, 1973 when the final orders of assignment were passed nor did she file any objection to the assignment in favour of the fourth respondent. Ultimately the second respondent held that:
The appellants did not choose to apply for assignment in time though they were made aware of the publication of B Form notice. They could have at least objected to the proceedings during the interval of about four months from the last date fixed for the receipt of objections and the date of Authorised Officer's passing orders. In this also, they have failed. As such their contention that they have been waiting to file their applications cannot be accepted. In the absence of applications from the appellants, the Authorised Officer(L.Ref.), Mayuram is right in having assigned, the lands to the only appellant the respondent.
4. Against the order of the second respondent refusing to interfere with the order of assignment dated 28th November, 1973 passed by the Authorised Officer, the petitioner herein filed a revision before the Land Commissioner, the third respondent herein. In the said revision the petitioner had urged that her tenancy having been notified in the draft and final statements under Sections 12 and 18 respectively she is entitled to preferential treatment in the matter of assignment and that the Authorised Officer had erred in not taking into consideration her claim for assignment of the said land. The third respondent also found that the petitioner had not applied to the Authorised Officer in Form C for assignment of the lands as required under Rule 7 of the Tamil Nadu Land Reforms (Disposal of Surplus Land) Rules, 1965, that the said rules did not enable the Authorised Officer to assign the land suo motu in favour of a person who has not applied for assignment in the form and within the ' prescribed time,' and, therefore, the petitioner's claim for assignment made long after the orders of assignment had been passed had rightly been rejected.
5. In this writ petition the learned Counsel for the petitioner contends that it is not open to the rule-making authority to frame a rule fixing a time limit for filing application for assignment, that the petitioner being a tenant whose name has been notified in the draft and the final notification under Sections 12 and 18 respectively she should automatically be granted an assignment, whether she filed an application or not.
6. I am not inclined to agree with the above contention. Even though the petitioner is a notified tenant in occupation of a portion of the excess lands entitled to a preferential claim for assignment as per Rule 5 of the Tamil Nadu Land Reforms (Disposal of Surplus Land) Rules, 1965 she is also bound to make an application for assignment of the surplus land to the Authorised Officer in Form C under Rule 7 of the said rules which has to be naturally considered by the Authorised Officer by following the procedure set out in Rule 8. Admittedly the petitioner in this case has not made any application before the last date for sending the applications or before 28th November, 1973 when the order of assignment was made. I cannot agree with the learned Counsel for the petitioner that even though an order of assignment has been made, once the petitioner files an application though belatedly, she having a preferential claim, the earlier order of assignment should have been cancelled and the petitioner's application should have been considered and assignment ordered. There is also no force in the contention of the learned Counsel for the petitioner that there is no time limit for filing an application, that an application for assignment can be filed at any time and that the statute itself does not contemplate an application for assignment being filed within a particular time. Once the surplus lands vest in the Government the lands have to be disposed of under Section 94 of the Act.
7. Section 94 enables the Government, after taking into consideration the object specified in the Preamble to the Act, to make rules providing for the manner in which any land acquired by the Government under the Act shall be disposed of and the rules so framed will come into force after the approval of the Legislature. Sub-section 2 of Section 94 providers that in the disposal of the land acquired by the Government under the Act they shall give preference to any person who is completely dispossessed of his holding or whose extent of holding is reduced to below three standard acres held by him partly as cultivating tenant and partly as owner or wholly as cultivating tenant : The learned Counsel may be right in his submission that under Section 94 (2) the petitioner as a person dispossessed of his holding as a tenant is entitled to preference, and that one of the objects specified in the Preamble to the Act is to see to the distribution of the land acquired by the Government under the provisions of the Act to the landless and other persons among the rural population and that the rules framed for the disposal of the lands should be consistent with the said objects specified in the Preamble and Section 94 (2) providing for a preferential treatment to the tenants dispossessed of their holding. The rule requiring an application for assignment to be filed within a particular time however, cannot be said to be ultra vires Section 94 as contended for by the learned Counsel) for the petitioner. Section 94 enables the Government to make rules providing for the manner in which lands are to be disposed of It is true in making those rules the Government has to bear in mind the preferential treatment given to the persons dispossessed. The Tamil Nadu Land Reforms (Disposal of Surplus Land) Rules, 1965 have been framed by virtue of the power contained in Section 94 and the preferential treatment given to persons dispossessed under Section 94 (2) is specifically provided in Rule 5 of the said Rules. The rules of preference contained in Section 94 (2) as also Rule 5 of the said rules contemplate more than one application. Naturally therefore the Authorised Officers should be empowered to call for applications for assignment of lands from all eligible persons and it is for this purpose he publishes a notice in Form B inviting applications for assignment of surplus lands before a particular date. Thereafter all the applications received are notified in form D and objections if any to the assignment of the land to the applicants had to be filed on or before a certain date. Thereafter the Authorised Officer considers all the applications and makes an assignment of the land in the light of Rule 5.
8. The learned Counsel point out that though the provisions of the Act or the rules do not provide for any time limit in filing applications, time limit is notified in form B for filing applications and this is contrary to the provisions of the Act and the Rules. I am not inclined to treat the date mentioned in form B notice as fixing a period of limitation for filing applications. The Authorised Officer has to find-out who are all the persons willing to take or are eligible for assignment under the rules. For that purpose he has to call for applications to be filed on or before a certain date as otherwise he has to wait indefinitely. If the petitioner has applied at least before the Authorised Officer finally considered the applications for assignment, it is open to him to contend that though his application is beyond the time mentioned in the notice in Form B, it should have been considered at the time of the actual assignment. Admittedly in this case there was considerable interval between the date mentioned in the notice in Form B and 28th November, 1973, the actual date of assignment, and even during this interval the petitioner has not filed any application for assignment. It is not, therefore, possible for me to accept the petitioner's contention that as a person dispossessed she is entitled to an order of assignment without filing any application for assignment, or that she can file an application at any time even after the assignment. I do not see any inconsistency between the rules and the provisions in Section 94. Even though the petitioner is entitled to a preferential claim for assignment still she has to comply with the requirement as to an application for assignment before the question of assignment comes up for consideration. The petitioner also contends that the fourth respondent to whom the lands have been assigned is not an eligible person in that he is not likely to engage himself in direct cultivation. But this point has not been urged before any of the authorities below. It is only in the affidavit in support of the writ petition it has been stated in a very casual manner that the fourth respondent is a retired teacher receiving pension, that he is living in a different village and that he is not a person who is likely to engage himself in direct cultivation. But the question whether the fourth respondent is a person who is likely to engage himself in direct cultivation is one of fact and such a factual question should have been agitated before the authorities below. The petitioner cannot agitate such a factual question in writ proceedings. In this case the application for assignment was filed long after the assignment order had been passed by the Authorised Officer. I do not therefore see any error in the order impugned. The writ petition, therefore, fails and it is dismissed.